Recently several internet service providers (ISPs), including Comcast, Cablevision, Verizon, AT&T, and Time Warner Cable, voluntarily agreed to inform their customers about their illegal file-sharing habits, educate them about the consequences such activity has on the various digital content providers, and potentially issue sanctions, such as reduced internet speeds, if the file-sharing activity does not cease. Other parties to the agreement include various content providers, such as the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA). The precise contours of the agreement are still being finalized, though the basic premise of the agreement is to notify internet users of suspected illegal file-sharing through a series of email alerts with the goal that users will modify their behavior accordingly. Up to six notifications may be issued to a user, prompting him or her to agree to a user agreement or face sanctions upon the fifth or sixth notification, such as decreased internet speeds or the user’s browser being redirected to a landing page (the ISPs say that service disconnection is not a goal).

The agreement between ISPs and content providers contains a certain logical appeal, kind of like having a chronic highway speeder be deterred from violating the speed limit by constantly encountering a flat tire. The new agreement represents a marked change from the previous enforcement regime, litigation against individual users. For instance, in June, 2009 a Minnesota woman was found liable by a federal jury for $1.92 million in damages for violating the copyrights on 24 songs (which works out to approximately $80,000 per song).

The new approach would seem to represent a boon for internet users, many of whom feel that the litigious route was an overly punitive approach out of proportion to the harms caused to the music and movie industries. Many questions remain, such as concerns over selective enforcement and the effect that the recent agreement will have on the safe harbors enjoyed by ISPS under the Digital Millennium Copyright Act (DMCA), which provides ISPs protection from suit if they are not aware that digital content is being transferred over their networks.

Another concern is whether the contours of the new agreement will actually deter illegal file-sharing, or whether those determined to download and share prohibited content will simply work to keep from being tracked. The UK, which has implemented a somewhat similar program of notifications and sanctions under the Digital Economy Act (albeit under a system of three warnings instead of six), released a poll that indicates that internet users are not likely to greatly change their behavior in the face of such a program–94 percent of respondents claim they will not alter their use habits when the program goes into full effect, 5 percent claim they will reduce their file-sharing activities, and 1 percent claim they will stop file-sharing altogether.

I wonder if ISPs have considered the fact that, in most cases, multiple users share a single internet connection. Would a parent who runs an online business from home be forced to suffer the effects of a sluggish connection as a result of his or her child’s file sharing activities? This hardly seems fair, but also seems like an inescapable consequence of this proposed approach.